Democracy requires accountability, so how did the UK government set up a system whereby it effectively holds itself to account?

They started with an arms-length body called an Ombudsman and they needed to convince the public that this body is independent of government. The belief in independence was crucial to success so they called the Ombudsman a Crown Servant, selected by the the Head of State, to hold the executive to account. The fact that recommendation for appointment comes from parliamentarians, that funding comes from the Treasury and that the Cabinet Office control the governing legislation is irrelevant. The Ombudsman is independent and impartial because they tell us this is so.

It took some time to set up appropriate legislative guidance as they attempted to provide the Ombudsman with the powers of a High Court Judge, yet at the same time prevent undue interference into parliamentary matters. Through a series of amendments, lasting some years of debate, they decided not to give this body either teeth or claws by which some damage may be done. The following paraphrased quote from Hansard gives a flavour of the 1967 debates which can be read in full here:

“The Bill was always drafted to be a swiz, and now it is spelt into the Bill…………Anyone who contemplates an office of this kind is faced with the dilemma of making it either a Frankenstein or a nonentity—a Frankenstein if it has effective powers and a nonentity if it has not. The Government, quite rightly, has opted for its being a nonentity, and in that sense it is a fraud……… I congratulate the Government on its being a nonentity. A Frankenstein would, I think, have undermined the power of Ministers…… it is a noble facade without anything behind it”

HANSARD JANUARY 1967 VOL 739 CC1375-400 AND HANSARD JANUARY 1967 VOL 739 CC1419-53

So far, so good. The next job is to ensure that each Ombudsman has a good track record of service to the state. Our current Ombudsman came to office in 2017 when members of the Public Administration and Constitutional Affairs Committee (PACAC) found the ideal candidate in Rob Behrens CBE.

Rob was Independent Adjudicator and Chief Executive of OIAHE, the ombudsman service for higher education students in England and Wales, for two terms between 2008 and 2016. Previously, Rob worked in higher education and then had a career in the UK civil service. During his time with the civil service, Rob served for three years as Secretary to the Committee on Standards in Public Life, the body giving independent advice on standards to the Prime Minister. He also worked in international development, including notable work on the South African transformation from apartheid – a role for which he was thanked personally by Nelson Mandela. Rob was also Complaints Commissioner to the Bar Standards Board of England and Wales between 2006 and 2008.

We can see what a good choice this was by looking at the impact on parliamentary investigations in the year following Rob Behrens appointment. They reduced from 28.32% investigated in 2017/18 to just 6.97% the following year. Well done Rob.

Currently 95% of parliamentary complaints are dismissed without investigation and fewer than 1% are upheld to some extent.

But that 1% could cause a headache for government except for the fact that the Ombudsman has no powers of compliance. Having found a government department to be guilty of maladministration, the Ombudsman can do no more than lay a report before parliament in the hope that the executive will enforce the proposed remedy.

Here is one such report produced in January 2022 relating to compensation payments to people who had been underpaid by the DWP in regards to their ESA benefits. Having found maladministration in payment to an individual complainant, the Ombudsman recommended that compensation payments should be made to all those who had been affected. But the DWP disagreed, as recorded by David Hencke @ Westminster Confidential.

DWP ignores the Parliamentary Ombudsman and refuses to compensate 118,000 disabled people hit by benefit maladministration

The Department for Work and Pensions has set a worrying precedent for millions of people hoping to get compensation if civil servants get their benefit and pensions payments wrong or don’t inform them correctly by refusing to pay them a penny.

The decision also shows up the weakness of complaining about maladministration to the Parliamentary Ombudsman, Robert Behrens, in cases involving the ministry as it ignores his rulings.

The toothless Ombudsman can do no more. DWP are allowed to hold themselves to account and the Cabinet Office are silent on the issue. The Ombudsman has served his purpose, to provide a facade of accountability. If you have deep pockets and a trust in the judicial system you could attempt a judicial review, otherwise you just have to suck it up for the Ombudsman himself is unaccountable.

No matter how harmful the actions of government are, there is no effective mechanism to hold them to account.